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What Employers Need to Know About Background Checks

The EEOC, Congress, and many state legislatures are closely scrutinizing how employers use background checks, especially criminal histories and credit reports. This presentation will walk employers through the process of preparing a background screening policy that helps ensure a safe and productive workforce while staying out of regulators’ cross hairs.

On April 25th, 2012, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.”

This was the first guidance on this topic issued by the EEOC in more than 20 years and reflects the EEOC’s recent scrutiny of employers’ use of criminal records in making employment decisions.

In addition to Title VII, other federal and state laws regulate employer’s use of criminal records, credit reports, and other information.

This presentation will walk employers through the process of preparing a background screening policy that helps ensure a safe and productive workforce while staying out of regulators’ and plaintiffs’ attorneys’ crosshairs.

In this presentation, we’ll cover:

The legal and safety reasons employers conduct thorough background checks.
Employers’ responsibilities under the Fair Credit Reporting Act.
Considerations in developing a background check and due diligence policy.
Title VII of The Civil Rights Act of 1964 and its application to background checks.
State-specific laws governing background checks.
You can download the presentation and the notes and a sample relevance matrix.

36.
The FCRA limits what can be reported inbackground checks. Reportability of Negative Information Age < 7years Age > 7 years, Age > 7 years, wages < $75K wages > $75K Non-conviction criminal Reportable Not reportable Reportable cases under federal under federal under federal (dismissals, acquittals, law law law cases not prosecuted – includes cases dismissed upon completion of deferred adjudication) Civil cases, liens, Reportable Not reportable Reportable judgments, credit items under federal under federal under federal law law law

37.
The FCRA limits what can be reported inbackground checks. Reportability of Negative Information Age < 7years Age > 7 years, Age > 7 years, wages < $75K wages > $75K Criminal cases ending Reportable Not reportable Reportable in conviction (guilty) under federal under federal under federal law law law Age < 10 years Age > 10 years, Age > 10 years, wages < $75K wages > $75K Bankruptcy Reportable Not reportable Reportable under federal under federal under federal law law law

38.
Sample State Consumer Reporting LawsTexas’ only restriction (limiting allinformation to seven years) wasinvalidated by the Fair and AccurateCredit Transactions Act (FACTA),though it is still widely quoted byattorneys and screening firmsunfamiliar with the interplay of thestate and federal laws.

39.
Sample State Consumer Reporting Laws The authorization and consent must contain a “box” for the consumer to check to receive a copy of the report. Employers may not inquire about sealed records and applicants may state that they have no conviction

40.
Sample State Consumer Reporting Laws  Employers may not consider non- conviction criminal information.  Convictions can only be reported for seven years (including murder, rape, arson, etc.)  Special protections for marijuana convictions and sex offenders.  Special notices to applicants when obtaining consent to procure background check.

41.
Sample State Consumer Reporting Laws  Employers may not inquire about criminal records on the initial written application. Time limits effective 2012:  Felonies: 10 years  Misdemeanors: 5 years  Murders, manslaughter and certain sexual offenses: no limit

42.
Sample State Consumer Reporting Laws Many states have passed or are considering laws to limit employers’ use of credit reports.

43.
Title VII of Title VII of the of 1964 the Civil Rights Act Civil Rights Act of 1964

44.
Title VII of the Civil Rights Act of 1964  Prohibits both intentional discrimination (“disparate treatment”) and seemingly neutral policies without business necessity that have adverse impacts on protected classes (“disparate impact” - see Griggs v. Duke Power)  Policies must have a manifest relationship to employment role with no viable alternatives to qualify as a business necessity  Heavily impacts employment qualifications, tests, and background checks

45.
Title VII of the Civil Rights Act of 1964 Criminal Records Brightline Rule: Have you ever been arrested?  No  Yes (please deposit your application in the trashcan on your way out)

46.
Title VII of the Civil Rights Act of 1964When reviewing criminal records, an employer must consider: – The relevance of the offense to the position, including severity and time passed since the offense – The reasonable likelihood that the person committed the offenseDisposition (final judicial outcome) is not the issue!See EEOC Policy Statement on the Issue of Conviction Records underTitle VII of the Civil Rights Act of 1964 and Policy Guidance on theConsideration of Arrest Records in Employment Decisions under Title VII of theCivil Rights Act of 1964

47.
Title VII of the Civil Rights Act of 1964When reviewing criminal records, an employer must consider: – The relevance of the offense to the position, including severity and time passed since the offense – The reasonable likelihood that the person committed the offenseDisposition (final judicial outcome) is not the issue!See EEOC Policy Statement on the Issue of Conviction Records underTitle VII of the Civil Rights Act of 1964 and Policy Guidance on theConsideration of Arrest Records in Employment Decisions under Title VII of theCivil Rights Act of 1964